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Title: Flowserve BW/IPP and IUE Local 628
Date: May 3, 1999
Arbitrator: Perry Zirkel
Citation: 1999 NAC 111

HEARING

            The hearing in this matter was held in Williamsport, Pennsylvania, on 4/21/99.  The spokesperson for the Flowserve - BW/IP (hereinafter "Company") was attorney Gordon Jackson.  The spokesperson for the IUE Local 628 (hereinafter "Union") was attorney Irwin Aronson.  The witnesses for the Company were supervisor Tim Satterfield, manufacturing manager Jeff Wingate, and human resources director Harvey Geib.  The witnesses for the Union were the grievant, Daniel McCourt, and chief steward Dave Schneider.  The joint exhibits were the collective bargaining agreement (J-1) and the grievance packet (J-2).  The Company 's 22 exhibits included its reward notice (C-1), the 6/5/97 verbal warning (C-3), the 9/11/97 written warning (C-4), the 11/13/98 termination letter (C-5), supervisor Wolfe's 5/26/93 (C-7) 4/26/93 (C-10) file notes, the employee code of conduct (C-9), and the human resource director's 4/26/93 (C-11) and 5/26/93 (Co. 16) file notes.  The Union 5 exhibits included certifications of reliability and trustworthiness (U-1 thru U-3) and  a 1/12/92 letter of commendation (U-4).  With the parties' mutually agreement to use oral closing arguments rather than posthearing briefs, the hearing closed on 4/21/99.

 

FACTS

            The Company is the current owner of a plant that produces high quality nuclear power industry valves.  The previous owner was Anchor Darling Valve.  Upon acquiring the assets on or about January 1997, the Company hired all of the active employees.  The records (e.g., personnel files), responsibilities, pension-vesting, and seniority remained the same.

            The Union has represented the employee since 1949.  The current size of the unit is approximately 70 employees.

            Anchor Darling Valve hired Daniel McCourt in 1959.  After the initial seven years in the foundry, he became a welder for the duration of his employment. 

            In the early 1990s, the welding department, which consisted of the McCourt, approximately seven other employees, and supervisor Tom Wolfe, was beset by poor morale and low productivity.[1]  The atmosphere had war-like aspects.  Some of the welding department employees wore symbolic headbands.[2]  On 1/23/93, when Wolfe required an employee to remove a T-shirt that displayed derogatory comments about Anchor Valve, McCourt reportedly threatened Wolfe not to turn his back toward him.  That night, someone shot out the pole light at manufacturing manager Wingate's house and shot into automobiles at Wolfe's house.  On 1/24/93, Anchor Valve posted a $5,000 reward.  In response, unidentified employees posted threats of more violence.[3]  Safety problems were also manifest in the welding department.[4]         

            McCourt, who was a Union official for much of this period, continued to be confrontational.  On 4/26/93, in response to a parking directive, he intemperately and separately threatened Wolfe and human relation director Harvey Geib.[5]  Similarly, on 5/26/93, when he found out that Anchor Valve had installed hidden surveillance cameras in an effort to find out who was responsible for sabotage of its property, McCourt expressed a veiled threat of retaliation to Geib.[6]   Later the same day he confronted Wingate; charged him with breaking the "truce"; and guaranteed that if the Company immediately removed the cameras "nothing will happen" and if not, "something will happen."[7]

            By the end of May 1993, Anchor Valve terminated Wolfe for lack of control and efficiency.  After a new supervisor quit after less than three months, Wingate assumed the responsibility, and the situation started to improve.

            On 1/1/95, Wingate assigned the supervisory duties to welding engineer Tim Satterfield.  Morale, safety, and productivity continued to improve. 

            On 6/5/97, after the Company acquired the assets and hired the active employees, Satterfield, per a progressive discipline policy,[8] issued an oral warning to McCourt and another welding employee for being out of their work area.  On 9/11/97, Satterfield issued a written reprimand to McCourt for again being out of his work area; the notice warned that for "[t]he next offense you will be given 3 days off without pay." 

            On 11/10/98, Satterfield separately counseled McCourt and co-worker Kenneth Fisher[9] for being notably unproductive.[10]

            On the next day, observing that  Fisher and McCourt were failing to heed his counseling, he went to Geib to recommend the third step,[11] which is a three-day suspension for each of them.  After Geib checked their files and concurred, Satterfield met first with Fisher in the presence of Union chief steward to notify him of his suspension.  When Fisher responded that he was not the only one who had been unproductive, Satterfield said that he was going to also address that situation.  Upon learning through the grapevine that he was next, McCourt confronted Satterfield at close range, exclaiming: "You better never threaten me, and don't ever turn your back on me or I'm going to get you; a war has started."  Satterfield escorted McCourt to Geib's office[12] and recommended termination.  Geib, who was on his way to the airport for a business trip, met with McCourt in presence of the chief steward and, after hearing his side of the story,[13] terminated him.[14]   The Union immediately filed a grievance.  After leaving for the airport, Geib called Satterfield and instructed him to interview the two employees who had been in the immediate area of his tete-a-tete with McCourt.  Satterfield did so, but they said that they did not see or hear anything and were unwilling to testify for either side.

            On 11/16/98, the Company officials met with the Union representatives for the third step of the grievance process and denied the grievance,[15] and the matter proceeded to the instant arbitration.

 

CONTRACTUAL PROVISIONS

 

ARTICLE III  -  MANAGEMENT

 

            1. Except as expressly stated by the specific provisions of this Agreement, the Company is vested exclusively with the management of its business, including, but not limited to, ... the right to ... discipline or relieve employees from duty ... for ... legitimate reasons.

 

ARTICLE XVI  -  GRIEVANCE PROCEDURE

 

            4.  In the case of a discharge, the discharged employee may confer with the Chief Steward before he leaves the plant by going to the Human Resources Department and stating his desire....  If a grievance should develop over the discharge, it should start at Step III.

            If not satisfactory settled at such meeting, a grievance shall be submitted to arbitration ... under Step IV and the Arbitrator shall have the power to determine whether or not such employee is to be reinstated; and if so, the amount of back pay, if any, to which he is entitled.  If such employee is reinstated, he shall be entitled to his full seniority rights.

 

 

 

ISSUE

            Whether the Company grievant was discharged for just cause?  If not, what shall the remedy be?

 

OPINION

            This case is largely a matter of fact finding, based in notable part on the credibility of the witnesses.  When the Company's prompt investigation of the matter, and the Union's diligent follow-up, revealed that no other employee was able, or at least willing, to testify about the 11/11/98 confrontation between the grievant and his supervisor, the case would appear to be one participant's word against the other.  However, this characterization, which the grievant asserted at the Step III meeting,[16] is not correct for more than one significant reason.

            First, there was no disagreement between the two versions that the grievant initiated the confrontation based on what he perceived as Satterfield threatening him at the meeting with co-worker Fisher.  An objective assessment of the facts, in terms of preponderance of the evidence, reveals that the grievant had no reason to believe that the supervisor threatened him.  At the Step III meeting, the Company twice made the point that the grievant was not specifically mentioned in the Satterfield-Fisher meeting.  The Union did not present any rebuttal at that meeting or, more importantly, at the arbitration hearing.  Rather, the evidence in this case is preponderant that in response to Fisher's query, Satterfield promised to be evenhanded in terms of addressing any other employee's similar problematic conduct.  The grievant could only reasonably conclude, based on a "heads-up" from the stewards, that he would be next in terms of likely discipline.  Considering that as a "threat," and thereby initiating a confrontation that resulted in one or more other threats, was clearly not reasonable on the grievant's part.

            Second, in contrast with Satterfield's previous conduct, the grievant has engaged in a pattern of intemperate confrontations.  Without attributing any of the sabotage and violence to the grievant, the balance of the evidence reveals that the grievant was specifically responsible for veiled or unveiled threats on 1/23/93 to his former supervisor; on 4/26/93 to his former supervisor and the human relations director, separately; and on 5/26/93 to the human relations director and the manufacturing manager, separately.  Although these confrontations were part of a period of hostility and unproductivity and, thus, arguably just blowing off steam, they reveal the grievant's individual propensity.

            Third, the grievant undermines his own testimony by conveniently forgetting most of these previous actions and understating the meaning of the little he professed to remember.  For example, his testimony that "whatever" in the context of his threat to Geib[17] referred to the grievance process is clearly contradicted by the immediate circumstances and his accompanying words.  The customary certifications of reliability required by the Company's customer do not repair the damage that the grievant did to his own case.

            Fourth, in the more immediate context, Satterfield had exhibited unrequired patience by counseling the grievant and a co-worker, in the face of blatant "screwing off" on the previous day, rather than resorting to the general structure of the Company's progressive discipline policy.  In contrast, the grievant -- and his co-worker -- engaged in the very same behavior on 11/11/98, thus compounding the reasons for discipline[18] and adding to the pattern of confrontation.

            Finally, by declaring "war," whether in response to the supervisor's invitation or on his own initiative, the grievant would be reasonably understood to be threatening a return to the previous period of blatant unproductivity, which threatened the survival, much less success of the Company[19] as well as the safety of its staff.[20]   The Union's guilt-by-association argument doesn't wash in this case; even if one were to assume that the grievant did not directly participate in the previous violence, he effectively admitted an indirect connection,[21] and, in any event, allowing his repeated defiance of the supervisor's directives and authority could lead to a return to the former situation. 

            The score in this case is certainly not a "shutout."  First, the Company's progressive discipline policy is far from optimal in its clarity; its large ad hoc component subjects its enforcement to careful scrutiny.  Had McCourt waited for his discipline and challenged it through the grievance process, he may have had a good argument if he received the same discipline as co-worker Fisher in light of the dates of their respective prior oral and written warnings.  A fortiori discharge would not have been a defensible decision, had the grievant not brought it on himself by subverting and compounding the process.

            Second, the grievant's long and relatively clean disciplinary record might have provided sufficient mitigation had it not been for the cumulative evidence of his repeated stepping over the line.  Arguably the Company should have acted sooner and more strictly, but it did set an example by terminating his previous supervisor and by issuing ample warnings to the grievant via his present supervisor.  By directly defying said supervisor's counseling and intemperately interfering with his subsequent disciplinary action, the grievant effectively asked for ultimately got.  Although the Company could have exercised leniency in terms of a less severe penalty, termination was within the range of its reasonable discretion in this case.[22]

            Third, the Company's termination decision was arguably precipitous.  In 20-20 hindsight, suspending the grievant pending further investigation would have been the appropriate step, especially given the scheduled flight of the human relations director.  Nevertheless, the investigation was prompt, and the Step III meeting soon thereafter afforded both the grievant and the Union to present any further evidence and arguments.  Thus, any initial error was not prejudicial.

            Finally, the arbitrator does not find the Company's takeover status at all determinative in this case.  The triggering events, which were the various grievant's various disciplinary incidents starting on 6/5/97, were all after the Company acquired the assets of Anchor Valve.  The tumultuous times in the welding department in the 1990s, whether considered separate or not, were, like the grievant's previous service, relevant background.

            Thus, a careful review of the evidence and arguments in this case reveal that the balance weighs in favor of denying the grievance.  The Company had just cause for its discharge decision.

 



                [1] The problems included missing parts and, despite the particular need for traceability in the nuclear industry, missing paperwork.

                [2] McCourt testified that the handkerchief-headbands were merely due to the heat, but, given the lack of evidence of such headbands being worn in more recent summers and the overwhelming evidence, including his acknowledgment ,that the welding employees were, in effect, at war with the Company at the time, his characterization is not credible.  In any event, this finding is only incidental to the more specific evidence relevant to the issue in this case.

                [3] For example, one of the postings modified the Company's reward announcement to threaten informers with mob-like vengeance (C-12).

                [4] For example, on 2/18/93, an outside contractor insisted on extra charges so as to install a welding exhaust systems on the weekend so as to avoid doing the work in proximity of the welding department employees (C-5).

                [5] According to their contemporaneous notes, when he learned that Geib was the source of the directive, McCourt went to Geib's office, grabbed the directive off his desk, and exclaimed: "This is going to cost you!"  Highly agitated, he returned to the welding department and reportedly shouted at Wolfe: "You're going to pay for this." (C-10).

                [6] According to Geib's contemporaneous notes, he said: "I have no scruples, ... I don't care about anything.  I just get even.  When you do something to me, I do something to you?  I don't care if it is here, at your house, your family -- whatever!" (C-16).

                [7] According to Wingate's contemporaneous notes, McCourt was arbitrarily adamant  

(C-7).

                [8] The policy provides that "[i]f a violation occurs, disciplinary action will be taken, including: (a) warning (b) written reprimand (c) suspension or (d) discharge, depending upon the rule and circumstances involved."  The specified violations included "13. Threatening ... fellow employees on Company premises," "15. Interfering with plant efficiency," "24. Insubordination," and "25. Failure to comply with Supervisor's ... work-related order" (C-9).

                [9] Fisher had received an oral warning on 5/4/98 (C-21) and a written reprimand on 5/14/98 (C-22).

                [10] Satterfield took this action as a courtesy rather than to automatically proceed to the next specified step in the policy.

                [11] Geib was responsible for the third and fourth steps of the discipline policy.  According to him, the earlier steps did not apply for offenses generally understood in the industry as dischargeable, such as punching a supervisor.

                [12] On the way there, Satterfield, who was upset, accused McCourt of "f---ing" with me yesterday and f--ing with me today."

                [13] As confirmed in his notes written soon afterward, McCourt denied threatening Satterfield and contended instead that Satterfield lost his temper, shouted the "f---ing" references at him, and challenged him to start a war (U-5).

                [14] The written confirmation of the termination, which was handwritten that day but not typed until 11/13/98, specified the reason as "violation of Employee Conduct Rule #13, Threatening his Supervisor" (C-5).

                [15] According to the Company's minutes of the meeting, the Union's chief steward reported finding only four warnings since 1992 in the grievant's 39-year file.

                [16] Although the Company's representative was the scrivener of the Step III meeting minutes, there would not appear to be any dispute that the grievant  asked why the Company accepted the supervisor's, rather than his, version of what had happened between them (C-17).

                [17] See supra note 6.

                [18] See supra note 8.

                [19] As a supplier of specialized valves for the nuclear power industry, the Company has an obvious critical need for documented quality as well as sufficient quantity of production.

                [20] In these times of tragic institutional violence, the need for safety in the workplace is also patent as well as paramount.

                [21] See supra text accompanying note 7.

                [22] See, e.g., ELKOURI & ELKOURI HOW ARBITRATION WORKS 910-15 (M. Volz & E. Goggin eds. 1997).

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